ACTA and Copyright 2.0: Di Corinto interviews Philippe Agrain

Philippe Aigrain is co-founder of La Quadrature du Net a citizen group defending freedoms and fundamental rights in the digital environment. He has just published “Sharing: Culture and the Economy in the Internet Age”, Amsterdam University Press,

Hello dear Philippe—

Here are the questions:
1) The juncture of conflicting interests frequently leads to a clash between copyright and other basic institutions (fundamental user rights) in our society, particularly the freedom of speech, privacy and Internet access. Is copyright, as we have known it for three centuries, an appropriate tool for the needs of creators and society in a digital environment as SOPA, Pipa and Scotus suppose?

Copyright and the exclusive control on copies part of author rights are deeply inadapted to the digital environment. In the era of work on carriers, copyright was never meant to regulate the acts of the public (the reader for instance). In the digital environment, an exclusive control on copies could exist only by depriving two billion individuals (and soon more) from basic capabilities of copying and exchanging files. This impossibility of such a control has not yet been recognized by all, and thus we see an ever expanding series of increasingly harmful laws such as SOPA, PIPA or the ACTA treaty that the European Parliament will reject or ratify in the coming months. But other rights, such as the social rights of authors and other contributors to creation to be recognized and remunerated remain fully valid. It is just the way in which they can be implemented that is deeply modified. We must find ways of rewarding and financing creative activities that do not require controlling individual acts by the public.

2) both the production and distribution functions migrate from business to the public and there they can rely on excess resources available at each consumption unit. Any hint about this?

In both the case of production of works (the initial copy of the work) and of copying and distribution, what we actually see is a coexistence between commercial players and non-market activities of individuals. In production, the greatest change brought by information technology is the immense increase in the number of people who produce creative and expressive works intended to be accessible to the public. This happens at all levels of competence, quality or relevance. Far from a rarefaction of works because of their sharing, we see an explosion in their number, and what becomes rarer is the attention each of these works can get from the public. This means that functions such as detecting, signalling, recommending and making accessible in smart manners contents of interest for users (possibly a specific community of users) become key. There will be a competition between commercial providers and the distributed public on how to provide this functionality. Once the content-related businesses will have accepted to live in a world where the right to share digital works between individuals is recognised, this competition will deliver great benefits. Both sides wille have their own assets: the multitude of intelligence and being the public on one side, and the centralization of knowledge and ability to brand an identity on the other side.

3) Online piracy refers to unlawful downloading, peer-to-peer and streaming of audio and video files on the web. In its attempt to somehow quantify the lost-sale myth of such activities, government bodies (such as GAO office) and many associations said that it is impossible to gather precise data about such different traffic options (downloading, peer-to-peer and streaming), which are instead generally available to Internet service providers (ISP). Are they to become sheriffs of the web? Are they accountable for online piracy?

I never speak of piracy, because the notion is misleading. Piracy is the act of taking the property of some one by violence, and sharing files with other people does not take anything from anyone. Let’s nonetheless consider your question about how much unauthorized access to works occurs by various means. Thanks to work by researchers such as Andrew Odlyzko or Felix Oberholzer-Gee, we have a decent knowledge of the evolution of traffic generated by various protocols. What is much more uncertain is how much this use is legitimate or infringing. Anyway, the reasons for which ISPs risk to become either traffic cops, traffic controllers or made liable for what they transport is not the desire to obtain better knowledge. It is the realization by content holders and their relays in public policy that controlling the acts of the public can be achieved only by totalitarian regimes, and even there, fortunately not completely. So they have moved to another strategy: instead of suing or policing users, they intend to deprive them from the ability to share works. They intend thus, for instance in both SOPA and ACTA, to threaten intermediaries with criminal sanctions or extreme financial liability in order to pressure them towards preventive policing and private justice. What I find truly offensive is that they present this as a “milder” way of treating file sharers.

4) IP protection has increasingly proved unequal to the new challenges of innovation. At the same time network driven innovation is seen to thrive in contexts in which exclusivity has been relinquished and is to a large extent replaced by cooperative behaviour among the players, based on a combination of contractual arrangements and liability rules. Isn’t it time to reform international conventions on copyright? Is it ACTA appropriate for such a purpose?

Sure, it is more than time to reform the international frameworks on copyright and author rights. It can be done in various directions, some threatening and other that would institute a new social pact between citizens, contributors to creation and providers of technological means. Article 27 of the Universal Declaration of Human Rights provides us with an umbrella under which to work. Some approaches are gaining support from very diverse parties and for diverse reasons, for instance making exclusive rights dependant on registration of works (as was the case in the US). However, the registers could become a kind of giant DRM machine operated by WIPO, or on the contrary a simple tool to support new reward models compatible with the free non-market sharing of works between individuals. Every corner of copyright and author rights needs to be revisited, reformulated to become compatible again with the values that supported these systems in a very new situation.

5) We assumed that Copyright 1.0 should survive; and we may anticipate that this is likely to be resorted to by creators (and businesses) choosing to operate along the traditional route. Indeed, the ultimate goal is not to displace old copyright, which seems to be alive and well in many situations, but to add to the menu a second possibility, Copyright 2.0, (would operate as a default set of provisions like “Creative Commons or GNU/GPL/GFDL by default”) which should be better tailored to the characters of production and distribution of works prevailing in the current digital environment. Do you agree?

I have a great sympathy for the Copyright 2.0 idea formulated by Prof. Marco Ricolfi. However, in its present formulation, where for reasons which I understand the choice is left to creators or producers, it does not address the key challenge of reinstatating the right to share works between individuals. This can not be an option. This is why I advocate a redefinition of the first sale doctrine (known in Europe as the exhaustion of rights doctrine) where non-market use rights are “exhausted” by the entry in possession of a digital file representing a work. A stronger Copyright 2.0 option can remain for remix/modification rights. Now, until we have this recognition in law, there are two ways to anticipate, which I practice both: subjecting the digital version of every one of my works to Copyright 2.0 as I just did with my Sharing book, and sharing the works of art and the human mind I love with others.

Thanks a lot.

My pleasure.

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